Opinion
CV-22-01827-PHX-DGC (DMF)
03-28-2023
Michael Aaron Turner, Plaintiff, v. Phillip Smith, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 5 at 11)
On October 24, 2022, Plaintiff Michael Aaron Turner (“Plaintiff”) filed the Complaint in this matter. (Doc. 1) Although Plaintiff filed his pro se Complaint while incarcerated in the Fourth Avenue Jail, Plaintiff has since been released from Maricopa County Sheriff's Office (“MCSO”) custody. (See Docs. 21, 26) On February 27, 2023, the Court's February 21, 2023, Scheduling Order was returned as undeliverable as to Plaintiff. (Doc. 21) On March 3, 2023, upon motion by Defendant Goduto, the Court ordered Plaintiff to show cause as to why this matter should not be dismissed for Plaintiff's failure to timely file a notice of change of address. (Doc. 24) On the same date, mail sent to Plaintiff from this Court was returned as undeliverable for a second time. (Doc. 26) Plaintiff has not filed a notice of change of address, nor has Plaintiff shown cause for his failure to file a timely notice of change of address.
For the reasons set forth below, it is recommended that this matter be dismissed without prejudice for Plaintiff's failure to prosecute and failure to comply with Court Orders in that Plaintiff has failed to notify the Court of Plaintiff's change of address.
I. PROCEDURAL HISTORY AND POSTURE
On October 24, 2022, Plaintiff filed a pro se Complaint (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). Plaintiff named as Defendants Officer Phillip Smith, Officer Goduto, and Sergeant Joseph Mills of the Phoenix Police Department; RN Erika Feliza Pascua, a nurse at Saint Joseph Hospital; and MD Marsha Janette Tomlinson and MD Bate, doctors at Saint Joseph Hospital (collectively, “Defendants”). (Doc. 1 at 23) In the October 24, 2022, Complaint, Plaintiff alleged three counts for relief. In Count One of the Complaint, Plaintiff alleged that Defendant Smith committed excessive force in violation of the Fourth, Eighth, and Fourteenth Amendments during Plaintiff's arrest and during Defendant's Smith's attempts to obtain Plaintiff's fingerprints. (Doc. 1 at 4; Doc. 5 at 3) In Count Two, Plaintiff alleged that Defendants Goduto and Mills used excessive force, threatened retaliation, and falsely arrested Plaintiff in violation of the Fourth, Eighth, and Fourteenth Amendments. (Doc. 1 at 5; Doc. 5 at 3) In Count Three, Plaintiff alleged that Defendants Pascua, Tomlinson, and Bate used excessive force and provided inadequate medical care. (Doc. 1 at 6; Doc. 5 at 4) At the time of the filing of the Complaint, Plaintiff was incarcerated in the MCSO Fourth Avenue Jail. (Doc. 1 at 1)
On November 15, 2022, the Court issued a Screening and Service Order in which the Court granted Plaintiff's Application to Proceed In Forma Pauperis and dismissed the excessive force claim in Count One regarding Plaintiff's arrest, the retaliation and false arrest claims in Count Two, and the medical care claim in Count Three. (Doc. 5 at 9) The Court ordered Defendant Smith to answer the excessive force claim in Count One regarding Defendant Smith's efforts to obtain Plaintiff's fingerprints; ordered Defendants Goduto and Mills to answer the excessive force claim in Count Two; and ordered Defendants Pascua, Tomlinson, and Bate to answer the excessive force claim in Count Three. (Id.) The Court directed the Clerk of Court to send Plaintiff a service packet, including summons and request for waiver forms for Defendants, and instructed Plaintiff to complete and return the service packet. (Id.) The Court further warned Plaintiff that:
Plaintiff must file and serve a notice of change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. []
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).(Id. at 8-9)
On December 19, 2022, the Court ordered Plaintiff to return the service packet for Defendants or show cause in writing as to why Plaintiff's claims against Defendants should not be dismissed for failure to comply with Court Orders. (Doc. 7) On December 30, 2022, Plaintiff returned the service packets for Defendants.
On January 9, 2023, Plaintiff filed a motion for stay and for appointment of counsel. (Doc. 8) On January 13, 2023, the Court denied Plaintiff's motion for stay and for appointment of counsel without prejudice and determined that the Court's December 19, 2022, Order to Show Cause was satisfied. (Doc. 9)
On February 9, 2023, counsel for Defendant Goduto entered an appearance and filed a notice stating that a letter counsel sent to Plaintiff on January 24, 2023, was returned to counsel because Plaintiff was no longer incarcerated at the address on file with the Court. (Doc. 10 at 2) On February 10, 2023, Defendant Goduto filed an Answer to the Complaint. (Doc. 12) On February 13, 2023, Defendant Goduto also filed a motion for leave to file an early motion for summary judgment (Doc. 13) as well as a notice of service of discovery to Plaintiff (Doc. 14).
On February 21, 2023, the Court denied Defendant Goduto's motion for leave to file an early motion for summary judgment (Doc. 16) and issued a Scheduling Order (Doc. 15). On the same date, copies of the Court's Scheduling Order and Order denying Defendant Goduto's motion for leave to file an early motion for summary judgment were mailed to Plaintiff.
According to internal Court notes entered February 27, 2023, the Clerk of Court was notified on February 21, 2023, by MCSO Inmate Legal Services that Plaintiff was no longer in MCSO custody as of January 26, 2023. On February 24, 2023, service was returned unexecuted as to Defendants Tomlinson and Bate. (Docs. 17, 18) Service was executed upon Defendant Pascua on February 21, 2023 (Doc. 19) and upon Defendant Mills on February 23, 2023 (Doc. 20). On February 28, 2023, service was returned unexecuted as to Defendant Goduto. (Doc. 22) On March 1, 2023, service was executed upon Defendant Smith. (Doc. 25)
Defendant Bate is named in the Complaint as “MD Bate,” yet the summons and returned unexecuted service documents name Defendant Bate as “MD Bates.” (Doc. 18 at 1-3)
Defendant Goduto waived service and entered an appearance in this matter on February 9, 2023, prior to service being returned unexecuted as to Defendant Goduto on February 28, 2023. (See Docs. 10, 11, 12)
On February 27, 2023, the Court's February 21, 2023, Scheduling Order was returned to the Court as undeliverable as to Plaintiff. (Doc. 21) The envelope returned to the Court stated the reason for the returned mail as “No Longer in Custody” and “Attempted - Not Known, Unable to Forward[.]” (Id.)
On March 2, 2023, Defendant Goduto filed a Motion for Order to Show Cause, asserting that she sent Plaintiff a letter to his address on file with the Court on January 25, 2023, and received the returned letter on January 27, 2023, with a stamped notice that Plaintiff was no longer in MCSO custody in the Fourth Avenue Jail. (Doc. 23 at 1; Doc. 23-1 at 2) Defendant Goduto stated that copies of her February 9, 2023, Appearance and Notices to the Court (Docs. 10, 11), her Answer (Doc. 12), her February 13, 2023, motion for leave to file an early motion for summary judgment (Doc. 13), and a request for discovery (Doc. 14) were mailed to Plaintiff's address at the Fourth Avenue Jail on February 13, 2023, yet each document was returned to Defendant Goduto as undeliverable as to Plaintiff. (Doc. 23 at 2; see also Doc. 23-2 at 2-10; Doc. 23-3 at 2-8; Doc. 23-4 at 2 25) Asserting that it had “been at least 34 days since the Fourth Avenue Jail noted that Plaintiff was released, thereby necessarily changing his address[,]” Defendant Goduto requested that this Court order Plaintiff to show cause for his failure to comply with the Court's Screening and Service Order. (Doc. 23 at 2-3)
On March 3, 2023, the Court granted Defendant Goduto's Motion for Order to Show Cause and ordered that within fourteen days of the Court's Order, Plaintiff must file a notice of change of address or show cause in writing as to why this matter should not be dismissed without prejudice for Plaintiff's failure to timely file a notice of change of address. (Doc. 24 at 3-4) On the same date, a copy of the Court's Order to Show Cause was mailed to Plaintiff. The time to comply with the Court's Order to Show Cause expired on March 17, 2023. Plaintiff has not filed a notice of change of address, nor has Plaintiff shown cause for his failure to timely file a notice of change of address. As of the date of this Report and Recommendation, the Court's March 3, 2023, Order to Show Cause has not been returned to the Court.
On March 3, 2023, the Court's February 21, 2023, Order denying Defendant Goduto's motion for leave to file an early motion for summary judgment was returned to the Court as undeliverable as to Plaintiff. (Doc. 26) The returned envelope stated the reason for the returned mail as “No Longer in Custody” and “Attempted - Not Known, Unable to Forward[.]” (Id.)
On March 13, 2023, Defendant Pascua filed a motion to dismiss Plaintiff's claim against Defendant Pascua. (Doc. 27) Defendant Pascua's motion to dismiss is not at issue in this Report and Recommendation.
II. FAILURE TO NOTIFY THE COURT OF CHANGE OF ADDRESS
The issue before the Court is whether to dismiss this matter for Plaintiff's failure to prosecute and comply with Court Orders insofar as Plaintiff has failed to notify the Court of Plaintiff's change of address.
In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss an action sua sponte for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31. It is Plaintiff's duty to prosecute his case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). It is also Plaintiff's duty to “keep[] the Court apprised of any changes in his mailing address[,]” and failure to do so constitutes failure to prosecute. Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). A court need not provide notice to a plaintiff before dismissal. Link, 370 U.S. at 632.
Further, the Rules of Practice of the United States District Court, District of Arizona (“LRCiv”) 83.3(d) requires that:
[a]n attorney or unrepresented party must file a notice of a name or address change, and an attorney must also file a notice of a change of firm name or e-mail address. The notice must be filed no later than fourteen (14) days before the effective date of the change, except that an unrepresented party who is incarcerated must submit a notice within seven (7) days after the effective date of the change. A separate notice must be filed in each active case.
To determine whether a plaintiff's failure to prosecute warrants dismissal, a court weighs five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).
Here, the first factor weighs in favor of dismissal, as dismissal would satisfy the “public's interest in expeditious resolution” of Plaintiff's claims. Henderson, 779 F.2d at 1423. If Plaintiff does not notify the Court of his new address or comply with Court Orders, the resolution of Plaintiff's case will be delayed.
The second factor also weighs in favor of dismissal, as dismissal would allow the Court to manage its docket. Id.
As for the third factor, Defendants would suffer prejudice if this matter is not dismissed. Defendants Tomlinson and Bate have not received notice of Plaintiff's lawsuit, nor have Defendants Tomlinson and Bate been served with the Complaint. (See Docs. 17, 18) In addition, Plaintiff alleges that the events underlying the Complaint occurred in October 2020. (Doc. 1 at 4-6) Although the loss of “a quick victory” is not prejudicial, Bateman, 231 F.3d at 1225, if this matter is not dismissed, Defendants would have to defend against a lawsuit regarding events that occurred nearly two and a half years ago. (See Doc. 1 at 4-6) Because of Plaintiff's failure to notify the Court of his change of address and Plaintiff's consequent failure to prosecute, Defendants will be subject to delay in the resolution of Plaintiff's claims. The third factor thus weighs in favor of dismissal.
The fourth factor does not support dismissal, as dismissal of Plaintiff's claims at this stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.
Finally, as to the fifth factor, alternative sanctions would likely be futile. Plaintiff has not made any filings in this matter since January 9, 2023. (Doc. 8) Plaintiff's lack of filings since early January 2023, as well as mail returned to the Court as undeliverable, suggest that “[a]n order to show cause why dismissal is not warranted or an order imposing sanctions would only find itself taking a round trip tour through the United States mail.” Carey, 856 F.2d at 1441 (where court could not contact plaintiff, dismissal and not lesser sanction was appropriate). In the Court's November 15, 2022, Screening and Service Order, the Court reminded Plaintiff of his obligations to submit a timely notice of change of address. (Doc. 5 at 8-9) In the Court's March 3, 2023, Order to Show Cause, the Court reminded Plaintiff a second time of his obligation to timely file a notice of change of address. (Doc. 24 at 3) Plaintiff has not filed a notice of change of address, nor has Plaintiff shown cause for his failure to do so. It is not the Court's duty to determine Plaintiff's new mailing address. See Carey, 856 F.2d at 1441 (“A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”). Plaintiff has had nearly two months since his January 26, 2023, release from MCSO custody to notify the Court of his current address but has not done so.
Further, the Court has warned Plaintiff about the possibility of the dismissal of Plaintiff's lawsuit. On multiple occasions, the Court has warned Plaintiff that if Plaintiff “fails to timely comply with every provision of' the Court's Orders, including warnings, “the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).” (Doc. 5 at 9; see also Doc. 24 at 4) In the Court's November 15, 2022, Screening and Service Order, the Court warned Plaintiff that:
Plaintiff must file and serve a notice of change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.(Doc. 5 at 8)
Only one less drastic alternative sanction is available. Fed.R.Civ.P. 41(b) states that a dismissal for failure to prosecute operates as an adjudication on the merits “[u]nless the court in its order for dismissal otherwise specifies.” Under the circumstances before the Court, a dismissal with prejudice would be unnecessarily harsh. Therefore, it is recommended that this matter be dismissed without prejudice. See Carey, 856 F.2d at 1441 (affirming dismissal without prejudice for failure to notify court of change of address); Sandoval v. Arpaio, 2006 WL 1882710, at *1 (D. Ariz. July 6, 2006) (adopting recommendation of dismissal without prejudice for failure to notify court of change of address).
Because Plaintiff has failed to prosecute his lawsuit and has failed to comply with Court Orders in that Plaintiff has failed to notify the Court of his change of address, the Court may use its discretion to dismiss this lawsuit without prejudice, and it is recommended that the Court do so. See Link, 370 U.S. at 630-31.
III. CONCLUSION
Because Plaintiff has not notified the Court of his change of address as ordered, it is recommended that this matter be dismissed without prejudice for failure to prosecute and failure to comply with Court Orders regarding filing a notice of change of address.
Accordingly, IT IS RECOMMENDED that this matter be dismissed without prejudice for failure to prosecute and failure to comply with Court Orders.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.